Generally, the spouse of an EB-5 investor applies for an EB-5 visa concurrently with the principal applicant. This takes place after the I-526 petition has been approved; the EB-5 investor must subsequently either file Form I-485 for adjustment of status or Form DS-260 for consular processing, depending on whether they are residing in the United States or living overseas.
During the initial stages of the EB-5 process, when the primary applicant is filing Form I-526, they must name their spouse and dependent children as derivative beneficiaries. Listing the spouse and children in the I-526 petition does not bind them to the EB-5 process; if any derivatives listed in the I-526 petition later decide not to apply for an EB-5 visa, there are no repercussions and they are not obligated to accompany the primary investor’s immigration petition.
Applying for an EB-5 Visa
Once the I-526 petition has been approved, the EB-5 investor may apply for an EB-5 visa. At this point, they may add any derivative beneficiaries, including the spouse, to their application. If residing overseas, the EB-5 investor will need to undergo consular processing. If they are already residing in the United States, they will need to adjust status. Certain investors already living in the United States under specified non-resident visas, including the H-1B, E-2 and F-1, may be eligible for concurrent filing of Forms I-526 and I-485.
When applying for an EB-5 visa and green card, admissibility to the United States will be judged separately for the EB-5 investor and each individual family member. At this stage, it is important for EB-5 investors to claim all derivatives who wish to immigrate, because once the process has progressed to removal of conditions it will be very difficult to add any more derivatives.
According to Section 6, Chapter 6 of the United States Citizenship and Immigration Services (USCIS) Policy Manual, the derivative spouse of a principal investor may be afforded the same priority and classification as the principal as long as (i) the marriage between the derivative spouse and EB-5 investor existed at the time the investor was granted a green card, (ii) the marriage continues to exist during the principal’s adjustment of status and (iii) the principal maintains lawful permanent resident status while the derivative spouse adjusts status.